In re the Marriage of Norman

                   IN THE COURT OF APPEALS OF IOWA

                                  No. 20-0692
                              Filed March 3, 2021


Upon the Petition of

And Concerning

      Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,


      Tracey Norman appeals the property and spousal support provisions of the

district court’s dissolution decree. AFFIRMED.

      Ryan J. Baumgartner of Cashatt Warren Family Law, P.C., Des Moines, for


      Joseph G. Bertogli, Des Moines, for appellee.

      Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.


       Tracey and Tedd Norman married in 1995 and divorced in 2020.                 On

appeal, Tracey challenges the property and spousal support provisions of the

dissolution decree.

I.     Property Division

       The parties agreed to a division of many of their assets. They disagreed on

the proper allocation of a Roth IRA in Tedd’s name. The IRA account contained

an $80,000 workers’ compensation settlement Tedd received before the marriage

as well as $14,464 rolled over from a 401(k) account Tedd had during the marriage.

       The district court included both sums in the marital estate, but gave Tedd

“full credit for the initial investment [of $80,000] and its appreciated value.” The

court also assigned him “the amount of $39,371,” representing “the appreciated

value of the investment of $14,464 in 2006.”

       Tracey argues “[t]he district court erred in failing to equitably divide [Tedd’s]

Roth IRA, which resulted in a disproportionate property equalization payment.”

She seeks an equal division of “the entire Roth IRA and interest” or, in the

alternative, an equal division of “the interest accrued on the Roth IRA.”

       “[P]roperty included in the divisible estate includes not only property

acquired during the marriage by one or both parties, but property owned prior to

the marriage.” In re Marriage of Sullins, 

715 N.W.2d 242

, 247 (Iowa 2006). “The

trial court may place different degrees of weight on the premarital status of

property, but it may not separate the asset from the divisible estate and

automatically award it to the spouse that owned the property prior to the marriage.”

Id. The court may

equitably divide the appreciation of premarital assets. See In

re Marriage of Fennelly, 

737 N.W.2d 97

, 104 (Iowa 2007). “When determining an

equitable division of assets which were owned by one party before the marriage

and which appreciated in value during the marriage, we consider the tangible

contributions of each spouse, whether the appreciation was fortuitous or due to the

efforts of the parties, and the length of the marriage.” In re Marriage of Amling,

2014 WL 4230222

, at *5 (Iowa Ct. App. Aug. 27, 2014) (citing In re Marriage of


577 N.W.2d 851

, 852–53 (Iowa Ct. App. 1998)).

      The parties agreed the value of the Roth IRA at the time of trial was

$251,683. The appreciation in the account was largely fortuitous. While Tracey

suggests otherwise, citing Tedd’s decision to hire a professional to oversee the

account, she essentially concedes neither she nor Tedd were personally

responsible for the increase in value. Notably, the court handled Tracey’s assets

in the same manner, assigning her non-pension employer accounts and the

fortuitous appreciation in those accounts to her.

      The court also considered the manner in which Tedd handled the funds in

the account. Unlike a second $30,000 workers’ compensation award that he used

“to satisfy the mortgage on the home,” Tedd separated the Roth IRA funds from

other money and did not withdraw any portion for marital expenses. In light of the

differential treatment of the two workers’ compensation awards, the court only

assigned the Roth funds to him. Similarly, the court did not give Tedd credit for a

$59,938.07 down payment he made on the marital home twenty-two years before

trial, notwithstanding Tedd’s assertion that the majority of those funds came from

the sale of a home he purchased before the marriage.

       Finally, Tracey received a significantly larger share of assets than Tedd,

even with the court’s assignment of the Roth IRA funds to him, as reflected in the

court’s comprehensive chart attached to the dissolution decree. To equalize the

distribution after the lengthy marriage, the court ordered Tracey to pay Tedd

$100,000. On our de novo review, we conclude the district court acted equitably

in including all the Roth IRA funds in the divisible estate and in assigning Tedd the

original deposits together with the appreciation.

II.    Spousal Support

       Tedd, who was disabled at the time of trial, sought spousal support of $1500

per month from Tracey. The district court awarded him traditional spousal support

of $750 per month until the death of either party or Tedd’s remarriage. See In re

Marriage of Hettinga, 

574 N.W.2d 920

, 922 (Iowa Ct. App. 1997) (“Traditional or

permanent alimony is usually payable for life or for so long as the dependent is

incapable of self-support.”). The court based the award on “the length of the

marriage, [Tracey’s] earning capacity presently and in the future, [Tedd’s] disability

and his ongoing medical conditions which makes his earning capacity virtually

nonexistent, the respective ages of the parties, their respective educations, the

court’s distribution of the marital property, the equalization payment ordered, and

their respective living expenses.”

       Tracey points to a variety of factors that, in her view, render the spousal

support award inequitable. We review the record de novo but “we accord the trial

court considerable latitude” and “will disturb the trial court’s order ‘only when there

has been a failure to do equity.’” In re Marriage of Gust, 

858 N.W.2d 402

, 406

(Iowa 2015) (quoting In re Marriage of Olson, 

705 N.W.2d 312

, 315 (Iowa 2005)).

       Tracey was forty-nine and Tedd was fifty-eight years old at the time of trial.

The parties were married for twenty-four years. At the time of trial, Tedd’s only

source of income was social security disability benefits of $2250 per month.

Tracey earned $67,000 per year and was in good health, with a number of earning

years ahead of her. The district court considered her expenses and other funds

that would defray her expenses before determining she had the ability to pay

spousal support. While Tracey faults the court for considering her gross rather

than net monthly income, her own calculation of the parties’ respective adjusted

net monthly incomes for child support purposes reflects that she had double the

net income as Tedd. The earnings disparity together with Tedd’s inability to

undertake gainful employment supported the spousal support award. See In re

Marriage of Anliker, 

694 N.W.2d 535

, 541–42 (Iowa 2005) (affirming an award of

$1250 per month in traditional spousal support where the parties were married

twenty years, the recipient spouse was in poor health, unable to work, and received

social security disability benefits, and the payor spouse was in good health and

had an earning capacity of $50,000); 

Hettinga, 574 N.W.2d at 922

(noting payee’s

“disability render[ed] her incapable of self-support now or in the future” and made

“[h]er need for alimony . . . absolute” and finding the payor had the ability to pay

based on his receipt of passive rental income); In re Marriage of DeCook, No. 11-


2012 WL 2122486

, at *2 (Iowa Ct. App. June 13, 2012) (modifying an award

of rehabilitative spousal support to an award of traditional spousal support based

on “the difference in the spouses’ earning capacities, the length of the marriage,

and . . . [the recipient’s] health problems”); In re Marriage of Aronson, No. 05-0373,

2006 WL 334250

, at *4 (Iowa Ct. App. Feb. 15, 2006) (increasing an award of

spousal support to a spouse who was “permanently disabled” and received only

“social security and other government benefits,” where the payor earned “over

$50,000 per year and was “in good health,” and “apparently [would] continue to

have a capacity to earn this much or more into the foreseeable future”). We

conclude the district court acted equitably in awarding Tedd traditional spousal

support of $750 per month.

III.   Appellate Attorney Fees

       Tedd seeks an order requiring Tracey to pay his appellate attorney fees.

Although he prevailed on both issues, we conclude the equalization payment he

received will allow him to bear his own appellate fees. See In re Marriage of


309 N.W.2d 432

, 438 (Iowa 1981); In re Marriage of Sterner, No. 18-


2019 WL 1057304

, at *9 (Iowa Ct. App. Mar. 6, 2019).

       We affirm the property and spousal support provisions of the dissolution



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